Transcript RULES OF CIVIL PROCEDURE

RULES OF CIVIL
PROCEDURE
STATE AND FEDERAL
THEN AND NOW
January 2008
Handout Materials
• CD format: too big to print and bring
• Will post to website as well: UM
Law/faculty/Ford
• Will post this PowerPoint as well, for
highlights
• 3 parts
– List of Montana rules which differ
– Montana rules, showing differences
– Federal rules, showing differences
History of Federal Rules
• Pre-1938: each federal court followed
civil procedure of state in which it sat
• Rules Enabling Act (1934) authorized
Supreme Court to adopt rules of
procedure for the lower federal courts
• 1938 Federal Rules of Civil Procedure
Limits on Federal Rules
• Rules Enabling Act: “shall not abridge,
modify, or enlarge substantive law”
• Federal Rules challenged frequently as
violating this restriction e.g. Sibbach v.
Wilson (1942)
• U.S. Supreme Court has never found a
rule invalid on this basis
Erie Doctrine
•
•
•
•
•
1789 Rules of Decision Act
State law to provide “rules of decision”
Apply in all federal diversity cases
Not applicable to federal question cases
Erie v. Pennsylvania Ry.
– State substantive law = “outcome
determinative”
– Federal procedure
New (1939) Federal Rules
• Transnational: applied to every federal
district court across U.S.
• Downside: lawyers in single state had
to master two procedural systems to
practice in state and federal courts there
• Meant to correct deficiencies in old
procedural regimes
Major Innovations of F.R.Civ.P.
• Shortened pleading phase:
– Notice pleading
– 2-stage pleading the norm
• Added discovery
full disclosure of information to both sides
key to goal of justice through trial on the
merits
• Increased judicial oversight: e.g., pretrial
conferences
Overall Purpose of F.R.Civ.P.
• Rule 1:
“These rules govern the procedure in all
civil actions and proceedings in the
United States district courts, except as
stated in Rule 81. They should be
construed and administered to secure
the just, speedy, and inexpensive
determination of every action and
proceeding.”
State Adoption of F.R.Civ.P.
• “Wait and watch”
• “In the late ‘80s, two authors did a survey of
how many states have “adopted” the FRCP or
used them as a model and found that 22
states plus D.C. had done so. That number is
quoted even in very current sources.
However, a 2001 article points out that only 8
of those states had adopted enough of the
subsequent amendments to keep them in-line
with the then-current rules: Minnesota,
Montana, North Dakota, Tennessee, Utah,
Vermont, Washington, and West Virginia.”
Tribal Adoption of FRCivP
• “I can’t find any statistics at all. I can find
discussions that mention that tribes have
adopted them, but nothing with any sort of
numbers. I can’t even find enough in the
discussions to make an educated guess.”
• Montana Tribes which have:
– CS&K,
– Crow.
– Blackfeet, Rocky Boy’s, Northern Cheyenne, Fort
Belknap, Fort Peck?
Montana Rules of Civil
Procedure
• Legislature created the Civil Rules
Commission in 1959, repealed in 1977
• Montana Supreme Court adopted original
rules Dec. 12, 1960
• Legislature enacted 1961, became effective
January 1,1962
SIMILAR TO, BUT NOT IDENTICAL WITH,
FEDERAL RULES: “They’re not the boss of
us”
Modeled on F.R.Civ.P.
• “As the notes of the Civil Rules
Commission and the Advisory
Committee indicate, many of the
Montana Rules of Civil Procedure are
patterned after the Federal Rules of
Civil Procedure… The Civil Rules
Commission, the Advisory Committee,
and the compiler have frequently
compared the M.R.Civ.P. to the
F.R.Civ.P. and have occasionally made
reference to the notes or report of the
"Federal Advisory Committee…”
Montana Rule Research
Route
•
•
•
•
•
•
•
•
Read the rule
Montana Commission Comment
Montana Supreme Court cases
Compare to Federal Rule
Only if they are similar:
Federal Commission Comments
Federal Treatise
Federal Cases
Major divergences between
Montana and Federal
• Rule 4: time for service of process
• Rule 11: certification requirements and
consequences of violation
• Rule 26: discovery
• Rule 35: waiver of doctor-patient
privilege
Time for Service of Process
• Montana: 3 years: M.R.Civ.P. 4E
– Replaces former 41e
• Federal: 120 days: F.R.Civ.P. 4m
Rules 11
• Montana and federal rules same until
1983
• Big federal amendment to insert “teeth”
in 1983
• Montana followed suit
• Several federal amendments 19932007, Montana still has 1993 version
Montana Rule 11
• Certification provision more general
• Mandatory sanctions
• Sanctions usually monetary, paid to
opponent
• Rule does not articulate procedure
• Goodover v. Lindey’s requires separate
motion, notice, hearing
Current Federal Rule 11
•
•
•
•
•
More specific certification provision
No mandatory sanction for violation
Safe harbor provision
Procedure specified in rule
Sanctions, if imposed, “limited to what is
sufficient to deter repetition”
No profit for moving party
Discovery
• Orthodox methods of discovery in both
state and federal rules:
– Interrogatories
– Depositions
– Requests for Production
– Requests for Admission
– Mental and Physical Exams
Federal Mandatory
Prediscovery Disclosure
• Rule 26a “General Provisions
Governing Discovery; Duty of
Disclosure”
• Initial Mandatory Disclosure
• Disclosure of Expert Testimony
• Pretrial Disclosures of witnesses and
exhibits; pretrial objections to exhibits
Mandatory Discovery Planning
• FRCivP 26f
• Parties required to confer 21 days
before scheduling conference or order
under 16b
• Discuss/plan disclosure
process/electronic issues/privilege-work
product issues
• Written report to court
Federal Expert Disclosure
•
•
•
•
•
•
26a2
Witness must prepare and sign written report
Opinions and bases
Data considered
Exhibits
Qualifications, including publications past 10
years
• Compensation
• Prior cases in past 4 years, trial or deposition
Electronic Discovery
• Recent federal amendments to deal
with discovery of information which is
stored electronically
• Affects several federal rules
• Upshot: parties entitled to discover
electronic information
Montana Supreme Court
2/28/2007
• The Advisory Commission on Rules of Civil
and Appellate Procedure appointed a
subcommittee of the Commission to study
whether we should amend the Montana
Rules with respect to the discovery of
electronic information to conform more
closely with recent amendments to the
Federal Rules of Civil Procedure on this
same issue.… The Commission unanimously
supports amending Rule 26 of the Montana
Rules of Civil Procedure and the related rules
to facilitate electronic discovery.
Adopts “Majority Proposal”
• We agree with the Commission that the
Montana Rules of Civil Procedure should be
amended to provide more specific guidance
with respect to the discovery of electronic
information. The Majority Proposal provides
the appropriate mechanism for this guidance.
• IT IS ORDERED that Majority Proposal to
Amend Rule 26 of the Montana Rules of Civil
Procedure and Related Rules to Facilitate
Electronic Discovery is ADOPTED;
Minority Proposal too much
• We recognize and acknowledge the concerns
of discovery abuse raised by the Minority
Proposal. [But] neither the Federal Rules nor
the rules of civil procedure of any other
jurisdiction, have imposed the types of
responsibilities and obligations contained in
the Minority Proposal. We likewise deem it
unnecessary to adopt these types of
responsibilities obligations [sic] at this time.
In so doing, we emphasize that we retain the
ability to modify the rules regarding the
discovery of electronic information in the
Montana Rules Affected by
2007 Electronic Discovery
Amendments
16b: Scheduling Order
•
• 26b: Discovery Scope
• 26f: Discovery Conference
• 33b: Interrogatories: option to produce
business records
• 34: Requests for Production
• 37: Discovery Sanctions
• 45: Subpoenas
Federal Amendments
Effective 12/1/07= NOW!
• Supreme Court approved amendments
April 30, 2007
• Congress took no action to change
• Thus, effective 12/1/07
• govern all proceedings commenced
on or after December 1, 2007, and
"insofar as just and practicable" all
proceedings then pending.
Restyled all Federal Rules
• “Restyled Civil Rules 1-86, Restyled
Illustrative Civil Forms 1 through 82,
and new Civil Rule 5.2”
• Text of the amended rules and
extensive supporting documentation
can be found at:
• www.uscourts.gov/rules/congress0407.
htm
Comprehensive Style
Revision
• Series of comprehensive revisions to simplify,
clarify, and make more uniform all of the
federal procedural rules
• Also some style-substance amendments:
minor, uncontroversial amendments
correcting ambiguities and inconsistencies
revealed during the style review
Example of Restyled Rule
• Old 8e2
• “When two or more statements are
made in the alternative and one of them
if made independently would be
sufficient, the pleading is not made
insufficient by the insufficiency of one or
more of the alternative statements.”
New 8e2, restyled
• “If a party makes alternative statements,
the pleading is sufficient if any one of
them is sufficient.”
Style-Substance Federal
Changes now effective
• “Style-substance track”
• Rules 4k, 9h, 11a,14b, 16c, 26g, 30b, 31c,
40, 71.1d, and 78a
• 11a/26g: include email address in all filings
and discovery documents
– Note: “does not of itself signify consent to filing or
service by e-mail”
New F.R.Civ.P. 5.2
• Civil Rules version of the E-Government
Rules
• Rule 5.2. Privacy Protection For Filings Made
with the Court (a) Redacted Filings. Unless
the court orders otherwise, in an electronic or
paper filing with the court that contains an
individual’s social-security number, taxpayeridentification number, or birth date, the name
of an individual known to be a minor, or a
financial-account number, a party or nonparty
making the filing may include only: (1) the last
four digits of the social-security number and
Upcoming Federal
Amendments
• Published for comment
• Rules 8, 13, 15, 48, new 62.1, 81
• Proposed Time-Computation Amendments
to the Federal Rules of Appellate,
Bankruptcy, Civil, and Criminal Procedure
To see proposed amendments: see
http://www.uscourts.gov/rules/
To comment electronically:
[email protected]
New U.S.District Court Local
Rules
• Extensive Revisions effective NOW:
January 7, 2008
• Available at website:
• http://www.mtd.uscourts.gov/rules.htm
MT Advisory Committee Now
• Following the enactment of the rules,
the Legislature created an Advisory
Committee on Rules to advise the
Supreme Court on subsequent
amendment of the adopted rules. The
Advisory Committee was created by Ch.
16, L. 1963, and continues to advise
the court in a manner similar to the
original Commission, under the
authority of 3-2-702, MCA, and Rule
86(a), M.R.Civ.P.
Montana Civil Rule
Commission Currently Active
• Jim Goetz, Bozeman, chair
• Undertaking study of Montana Rules in
comparison to newest version of Federal
Rules to determine which/whether Montana
Rules should follow federal amendments
• Comments/observations to Chair
• Committee Members currently reviewing
each rule and will give first drafts to
Committee this month